Defendants
separately moved in their respective actions to transfer
their cases to this court, and both motions were granted.
Once transferred, the court consolidated the two cases for
pre-trial purposes.

Ruger
moves for summary judgment of noninfringement (doc. no. 49),
asserting that the ‘722 patent requires that the
rifle's handguard have an “open” forward end
“to permit access” to certain components of the
rifle's operating system. Ruger asserts that its rifles
that allegedly infringe the ‘722 patent (the
“accused rifles”) lack this feature. Plaintiff
objects, arguing that summary judgment is
inappropriate.[1]

Background

The
‘722 patent issued on November 9, 2010. The patent was
issued to Robert Davies, who was the President of Advance
Device Design and RF Power Devices, Inc. After Mr. Davies
passed away in October 2012, the ‘722 patent was
assigned, first to Mr. Davies' friend, David Stanowski,
and subsequently, on October 7, 2015, to Davies Innovations,
Inc. (“Davies”), the plaintiff in this case. Two
days after the assignment, Davies filed the instant lawsuits
against SIG Sauer and Ruger, alleging that both defendants
infringe the ‘722 patent by offering to sell and
selling rifles covered by the patent's claims.
See 35 U.S.C. § 271(a).

The
‘722 patent generally discloses a gas-piston driven
rifle having an upper receiver, a bolt carrier, a barrel, a
handguard, and a gas-piston operating system that is at least
partially removable through a plug in the front of a barrel
coupling that serves to redirect gases from the discharge of
the weapon to a piston assembly. The gases force the piston
assembly rearward, causing a force to be exerted on the bolt
carrier, which forces the bolt carrier rearward to eject the
spent cartridge casing.

The
dispute in this summary judgment motion centers on the
handguard. Every claim of the ‘722 patent requires that
the rifle have a handguard with an open forward end to permit
access to certain components of the rifle's operating
system.[2]

Specifically,
Claim 1 of the ‘722 patent provides:

1. A rifle having an upper receiver carrying a bolt carrier
and a barrel attached to the upper receiver, the rifle
further comprising:

an operating system extending forwardly along the barrel and
terminating in a barrel coupling including a piston assembly
coupled to the barrel for receiving propelling gasses from
the barrel, the piston assembly having a cylinder with an
open forward end, a piston moveable between a retracted
position and an extended position within the cylinder, and an
end plug removably closing the open forward end of the
cylinder to permit passage of the piston therethrough when
the plug is removed.

a tubular handguard having a forward end, a rearward end, a
central void extending between the forward end and the
rearward end, and a channel extending therealong adjacent the
central void, the tubular handguard received about the barrel
with the channel providing clearance for the operating system
and the forward end being open to permit access to the barrel
coupling and end plug of the operating system; and

a barrel nut coupling the barrel to the receiver, and the
tubular handguard encircling the barrel is received about and
coupled to the barrel nut.

Doc. no. 1-1 at 22, Claim 1 (emphasis added). The ‘722
patent shows a view of the tubular handguard surrounding the
barrel with the forward end being open to permit access to
components of the operating system in Figure 9. Figure 9 is
reproduced below with a graphic (rectangle) added by the
court to identify the open forward end of the handguard:

Ruger
moves for summary judgment, arguing that it does not infringe
the ‘722 patent because its accused rifles do not have
a handguard with “the forward end being open to permit
access to the barrel coupling and end plug of the operating
system.”[4]Davies disagrees with that argument.
Because the construction of the claim is relevant to whether
certain of SIG Sauer's rifles are covered by the
patent's claims, the court allowed SIG Sauer to brief the
claim construction issue, and allowed Davies to respond to
SIG Sauer's brief. The court held a hearing on
Ruger's motion on December 2, 2016, during which Davies,
Ruger, and SIG Sauer presented argument and/or evidence.

Standard
of Review

“Evaluation
of summary judgment of noninfringement is a two-part inquiry:
first, a court construes the scope and meaning of the
asserted patent claims, and then compares the construed
claims to the accused product.” Medgraph, Inc. v.
Medtronic, Inc., 843 F.3d 942, 949 (Fed. Cir. 2016);
see also Markman v. Westview Instruments,
Inc., 517 U.S. 370, 384-85 (1996). The construction of
patent claims is a matter of law exclusively for the court.
UCB, Inc. v. Yeda Research and Dev. Co., Ltd., 837
F.3d 1256, 1259 (Fed. Cir. 2016). The determination of
infringement, however, is a question of fact. Bai v. L
& L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir.
1998). As such, the court should grant summary judgment of
noninfringement only when it determines that, after
construction of the claim and drawing all reasonable factual
inferences in favor of the nonmovant, no rational factfinder
could find that the accused products infringe the patent at
issue. Medgraph, 843 F.3d at 949.

Discussion

I.
Claim Construction

In
construing the scope and meaning of patent claim terms, a
court looks first to the evidence intrinsic to the patent.
Astrazeneca AB v. Mut. Pharm. Co., Inc., 384 F.3d
1333, 1336-37 (Fed. Cir. 2004). The court begins by looking
to “the claim language itself to define the scope of
the patented invention, ” and to the patent's
specification “[w]hen the claim language itself lacks
sufficient clarity to ascertain the scope of the
claims.” Chimie v. PPG Indus., Inc., 402 F.3d
1371, 1377 (Fed. Cir. 2005) (internal quotation marks and
citation omitted). Finally, the prosecution history, if in
evidence, is examined “to discern the applicant's
express acquiescence with or distinction of the prior art as
further indication of the scope of the claims.”
Id.

Both
Ruger and Davies assert that formal claim construction is
unnecessary because the claim limitation of a tubular
handguard with “the forward end being open to permit
access to the barrel coupling and end plug of the operating
system” uses common terminology, and a construction of
the limitation beyond the plain and ordinary meaning of its
terms would not aid the jury.[5] After considering the intrinsic
evidence, the court agrees that nothing in the intrinsic
evidence suggests the patentee intended those terms to carry
some alternative definition beyond their plain and ordinary
meaning.

Claim
construction, however, is still necessary. Although the
parties agree on the definition of the terms in the
“open to permit access” limitation, they dispute
the scope of the limitation itself. Therefore, the court must
construe the claim in order to settle the meaning of the
disputed terms as they are used in the ‘722 patent and
the scope of the claims in which the terms appear.
SeeO2 Micro Int'l Ltd. v. Beyond Innovation
Tech. Co., Ltd.,521 F.3d 1351, 1362-63 (Fed. Cir. 2008)
(Markman requires district courts to resolve disputes between
the parties as to claim terms' meaning or scope).

There
are two components of the “open to permit access”
limitation that are relevant to Ruger's motion:
“being open” and “to permit access.”
The court addresses the components separately.

A.
“Being Open”

As
discussed above, the parties agree that the phrase
“being open” invokes the plain and ordinary
meaning of those terms, and nothing in the intrinsic evidence
suggests otherwise. The parties, however, disagree as to
whether the handguard on the accused rifles is open under the
plain and ordinary meaning of that term. Therefore, the court
will “clarify and . . . explain what the patentee
covered by the claims, for use in the determination of
infringement.” U.S. Surgical v. Ethicon, Inc.,
103 F.3d 1554, 1568 (Fed. Cir. 1997).

During
the prosecution of the ‘722 patent, the examiner twice
rejected the patentee's claim as obvious in light of the
combination of U.S. Patent No. 4, 244, 273
(“Langendorfer”) with other patents. See
35 U.S.C. § 103. The Langendorfer patent disclosed a
rifle in which the forward end of the handguard attached to
the rifle's front sight assembly. Mr. Davies, the
patentee, distinguished Langendorfer on the grounds that,
unlike the rifle disclosed in the ‘722 patent, the
forward end of the handguard on the Langendorfer rifle was
not open: “Additionally, Langendorfer does not teach an
open end to the handguard. The handguards are attached at the
front sight assembly. There is no provision, structure or
possibility that the handguards of Langendorfer can be open
at the forward end.” Doc. no. 52-16 at 12. The patentee
later noted that “[e]limination of the front sight
assembly to provide an open fronted handguard would render it
inoperable for its intended purpose.” Id. at
13.

The
patentee's invocation of the term “open” in
this manner indicates that the forward end of the handguard
on the Langendorfer rifle is not open because it is attached
to another portion of the rifle, i.e., the front sight
assembly. It also indicates that the forward end of the
handguard on the Langendorfer rifle would be open were it not
attached to the front sight assembly.

Thus,
the prosecution history confirms that the plain and ordinary
meaning of the phrase “being open” is properly
applied to the “open to permit access”
limitation. The court agrees with the parties that the phrase
“being open” is clear in the context of the
‘722 patent without the need for elaboration. To the
extent the parties advance an argument suggesting that the
plain and ordinary meaning of the phrase “being
open” is inconsistent with the prosecution history
discussed above, that argument is without merit.

B.
“To Permit Access”

The
court next turns to the phrase “to permit
access.” Although the parties agree that the phrase
should be given its plain and ordinary meaning, they again
dispute the scope of the limitation.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Davies
refers at various points in its objection to the phrase
&ldquo;to permit access&rdquo; as meaning &ldquo;does not in
any way prevent access, &rdquo; doc. no. 52-1 at 15, and
&ldquo;without any portion of the handguard preventing
access, &rdquo; Id. at 16. Thus, Davies appears to
assert that the phrase “to permit ...

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